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Roy Moore, Alabama's Republican nominee for the U.S. Senate, introduced a new dimension to the debate over NFL players’ protest by claiming that kneeling during the national anthem is illegal.
"It’s against the law, you know that?" Moore said in an Oct. 16 interview with Time magazine. "It was a act of Congress that every man stand and put their hand over their heart. That’s the law."
Given his controversial role as the former chief justice of the Alabama Supreme Court, Moore’s claim caught our attention. We’ve previously looked at the history of athletes protesting the national anthem, but this is the first time we wanted to explore what the law says — and doesn’t say — on the matter.
Moore cited Title 36, Section 301 of the U.S. Code, which designates the Star-Spangled Banner as the national anthem. It also instructs military members and veterans on how to properly comport themselves while the anthem plays, before addressing civilian etiquette.
"All other persons present should face the flag and stand at attention with their right hand over the heart," the law states, "and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart."
So Moore is correct in one sense: Congress indeed passed a law dealing with decorum during the national anthem. But the etiquette is merely a suggestion, not a legal obligation.
We know this because lawmakers used the word "should" — not "shall" — with regard to their patriotic guidance. The word "should" implies "usually no more than an obligation of propriety," according to the authoritative legal reference Black’s Law Dictionary. In other words, "should" does not create a legally enforceable duty.
"When laws are binding they use the word ‘shall.’ Shall is non-negotiable, and not discretionary," said Catherine Ross, a law professor at George Washington University who specializes in First Amendment law. " ‘Should’ is a recommendation. That is, in the context of patriotic ceremonies, it’s what a civilian should do if they want to follow best practices."
Moore’s statement may give the impression the law is binding, when in fact it’s toothless — at least with regard to non-military members. It contains no mechanism to force the average civilian to stand at attention during the national anthem, and contains no penalties for those who opt to sit or kneel.
The absence of such consequences reinforces that the law is simply a protocol or ideal, as opposed to a legal mandate, said Michael Gerhardt, a professor at UNC School of Law.
Because the law contains no enforcement mechanism or penalty, it’s difficult to imagine a civilian who knelt for the national anthem being hauled into court. But for argument’s sake we asked legal experts how a judge would handle such a case.
"In spite of whatever the law says," Gerhardt said, "there is strong Supreme Court precedent protecting people from being compelled to express a message they do not approve."
Ross said two Supreme Court cases virtually ensure a court would find that the First Amendment protects the right to kneel during the national anthem.
In 1943, the court ruled in West Virginia vs. Barnette that the First Amendment protects people from being forced to participate in patriotic ceremonies that offend their conscience or beliefs. In the 1989 case of Texas vs. Johnson, the court protected the the right to burn the American flag as a form of symbolic speech.
"If the Constitution protects the right to burn the flag and the right not to participate in the pledge as aspects of free speech," Ross said, "it must also protect the right to kneel respectfully during the national anthem or the pledge of allegiance."
Moore said NFL players taking a knee during the national anthem is "against the law."
Moore's basis is that a law on the books describes patriotic etiquette during the national anthem. But his statement gives the false impression the law is binding, when in fact it’s merely guidance that carries no penalty. Additionally, legal experts told us the First Amendment protects the right to kneel during the national anthem.
We rate this False.
Transcript, Roy Moore interview with Time magazine, Oct. 16, 2017
PolitiFact, "A short history of the national anthem, protests and the NFL," Sept. 25, 2017
Legal Information Institute, 36 U.S. Code § 301
U.S. Supreme Court, West Virginia vs. Barnette, 1943
U.S. Supreme Court, Texas vs. Johnson, 1989
Email interview with Catherine Ross, professor at George Washington University Law School, Oct. 19, 2017
Email interview with Michael Gerhardt, professor at UNC School of Law, Oct. 19, 2017
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